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Political, constitutional, juridical, and socio-cultural aspects of the origins and development of the Canadian State (Part Two)

By Mark Wegierski
web posted September 26, 2011

There has been a major shift in the Canadian system owing to the introduction of the Charter of Rights and Freedoms into the Canadian Constitution in 1982. It has encouraged a tendency towards "judicial activism," where ever larger numbers of issues are resolved juridically, by the decisions of the Supreme Court of Canada, or sometimes even of lower courts. Before 1982, Canada more closely followed the so-called British model, focussed on the "Sovereignty of Parliament" without reference to a detailed enumeration of rights, subject to judicial review -- which could be considered a more American-style constitutional model. There are also hundreds of federal and provincial administrative bodies (the so-called "quasi-judicial tribunals") that adjudicate everything from rent increases to sexual harassment complaints, equal pay disputes, and immigration and refugee claims. Among the most prominent of these various bodies are the federal and provincial human rights tribunals, that have taken increasingly aggressive stands against so-called "hateful" speech. This is a bypassing of the strict legal requirements for "hate speech" that appear in the Criminal Code -- and where prosecutions have never (or almost never) been undertaken.

The Canadian Constitution Act, 1982 (including the Charter of Rights and Freedoms), has never been formally approved by Quebec, whose governments have claimed that it tended to undermine their "collective rights." Indeed, Quebec has made extensive use of the "notwithstanding clause" of the Charter, which allows federal and provincial legislatures to pass laws "notwithstanding" the Charter. The "notwithstanding" clause, however, has almost never been invoked at the federal level, or in any of the other nine provinces.

The configurations of the political relations between the provinces and regions of Canada have had a huge impact on the emergence and development of Canadian political parties. At Confederation and until 1896, the Conservative Party of Prime Minister John A. Macdonald (actually technically called for a time the Liberal-Conservative Party) allied with the so-called "Bleus" of Quebec, dominated the Canadian system. After 1896, Quebec -- when voting at the federal level -- switched its vote, en masse, to the Liberal Party (which had emerged out of a coalition of the "Clear Grits" in Ontario and the "Rouges" in Quebec). The Twentieth Century has been characterized by Liberal dominance at the federal level, with only brief Conservative interludes. The post World War I and Great Depression crisis resulted in the creation of new, mostly Western-Canadian based parties -- the Progressives, the left-leaning Co-operative Commonwealth Federation, and the right-leaning Social Credit (which also had a Quebec presence, the Creditistes, who represented a nascent Quebec nationalism). In 1942, the Conservative Party changed its name to the Progressive Conservative Party, in an attempt to attract the Western-based Progressives, as well as to give it a more "moderate" image. During this time, Quebec at the provincial level tended to support ultra-socially-conservative parties (such as the Union Nationale of Maurice Duplessis), while at most times continuing to vote Liberal federally. In 1961, the Co-operative Commonwealth Federation renamed itself as the New Democratic Party (NDP) -- which clearly represented a shift away from some of the earlier, more socially-conservative tendencies of the CCF.

The support of Quebec Premier Maurice Duplessis for the Progressive Conservatives of Diefenbaker in the 1958 election resulted in one of the largest majorities in Canadian history for Prime Minister John Diefenbaker. However, Diefenbaker's duration in office coincided with a comparatively poor economic situation (which created a longstanding interrelation in many people's minds between a period of Conservative government and "hard times" -- so they were loathe to vote Conservative ever again). In 1963, in one of the most critical elections in Canadian history, Prime Minister Diefenbaker, while upholding a more traditional vision of Canada, was trounced by Liberal Lester B. Pearson, who (although this was not entirely clear during the election) would lead in the opening of Canada to new trends.

In 1965, Canada's traditional flag, the Red Ensign (a flag -- like that of Australia's today -- with a Union Jack in the upper-left corner), was replaced by the Maple Leaf Pennant -- which some Canadian traditionalists saw at that time as a Liberal Party banner. Although the change of flag did not seem to elicit excessive controversy at the time, some students of political theory do indeed consider something like a country's change of flag as pointing to massive socio-cultural transformation, a symbol of "regime-change."

With the near-disappearance of the term "Dominion of Canada" from official state documents, Canada after 1965 has increasingly identified itself diplomatically to the world as "The Government of Canada." Semantically, this could be seen as suggesting the notion that Canadian society has little coherent existence outside of its government and juridical apparatus. Most countries distinguish in their diplomatic terminology between a given "realm" -- whether a kingdom, republic, etc. -- and their governments. It may not be surprising that the various levels of government in Canada today account for about half of the national GDP (in contrast to about forty percent in the United States). ESR

Mark Wegierski is a Canadian writer and historical researcher.

 

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